Many lawyers assume that the work product doctrine will cover a lawyer-directed internal investigation following a serious industrial accident. They often are wrong.
In Carroll v. Praxair, Inc., No. 2:05-cv-307, 2006 U.S. Dist. LEXIS 43991 (W.D. La. June 28, 2006), a truck driver at Praxair’s facility was found unconscious. Within 24 hours, Praxair’s law department created an investigation team — instructing the team to report back to the law department and mark all their documents “Confidential Attorney-Client/Work Product Privilege.” Id. at *3. When challenged, Praxair offered an affidavit of one of its environmental services managers stating under oath that the investigation was “lawyer-driven and primarily designed to address claims of liability and expected litigation against Praxair.” Id. at *10. The court rejected Praxair’s affidavit and argument, pointing to testimony that “investigations are routinely done following any accident that occurs.” Id. The court also noted that Praxair “made certain changes in its operations” as a result of the investigation, highlighting the business nature of the investigation. Id. at *11.
The court in Praxair indicated that “there is nothing before the court to indicate whether all investigations of accidents were conducted under the direction of the Praxair’s Law Department.” Id. at *11-12. Ironically, a company trying to maximize work product protection by always having its law department direct internal investigations might actually be reducing the chance of protection — by making that approach the “ordinary course” of its business.